'Many Eminent Lawyers Are Not Willing To Join The Bench But Are Ready To Work As Ad-Hoc Judges': Supreme Court

While hearing two applications filed in the PIL preferred by NGO Lok Prahari seeking invocation of Article 224A for appointment of ad-hoc judges to tackle the problem of mounting case arrears in High Courts, the Bench comprising Justices Sanjay Kishan Kaul, A.S. Oka and Vikram Nath noted that though senior lawyers are often not willing to take up permanent positions at the Bench, they might be inclined to take up ad-hoc positions for a couple of years as a part of their social commitment. The Bench orally suggested both the Counsels to explore the idea and make suggestions in this regard.

Last year, in the month of April, the Apex Court had issued a slew of guidelines regarding the appointment of ad-hoc judges in High Courts. It had stipulated 5 trigger points which can activate the process under Article 224A.

1. If the vacancies are more than 20% of the sanctioned strength.
2. The cases in a particular category are pending for over five years.
3. More than 10% of the backlog of pending cases are over five years old.
4. The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court.
5. Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more

On Thursday, at the outset, Justice Kaul remarked that the procedure for appointment of ad-hoc judges seems to be very "cumbersome" and may "not work".

"We should not have the procedure so cumbersome that the whole purpose is lost. This pendency position is aggravated in some High Courts. For eg. the criminal side, second appeals... are major challenges…"

Pertinently, the Judge pointed out that the ad-hoc judges to be appointed to the High Court are not being appointed for the first time. They have served previously and thus have the expertise to deal with the heavy workload. In this backdrop, he suggested that the process for their appointment ought to be simpler than regular appointments.

"The very nature is to provide a quick methodology...we should ideally simplify the procedure. We are not appointing them for the first time, they have been judges already…"

During the course of the hearing he flagged the issue of appointing senior lawyers as ad-hoc judges for a couple of years. He added that these eminent lawyers after completing their term of appointment shall abstain from practicing in High Courts where they serve as ad-hoc judges.

"Many eminent lawyers are not willing to join the Bench but ready to work as ad-hoc judges in some courts and will not practice in that court again."

The Judge was also critical about delays in making appointments and he stated that if the appointment is not made within a few days of the commendation of the Chief Justices of the High Courts, then meritorious candidates end up losing interest and the justice delivery system faces a huge loss.

"You (Centre) have to forget you are appointing judges, you are appointing ad-hoc judges. Once the Chief Justice recommends it should happen in a matter of days, if it goes for long no one will come back."

The matter would be next taken up on the 8th of February, 2023. 

[Case Title: Lok Prahari v. UoI And Ors. WP(C) No. 1236/2019]